Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 35 EPD ¶34,592, Alice D. Millender, Plaintiff v. Southern Bell, Defendant., (June 07, 1984), (Jun. 7, 1984)

Alice D. Millender, Plaintiff v. Southern Bell, Defendant.

United States District Court, District of South Carolina, Columbia Division.Civil Action No. 81-1454-3, June 7, 1984

Title VII--Civil Rights Act of 1964

Burden of Proof--Prima Facie Case--Failure of Proof.

--A black, female bias claimant failed to establish a case of racially motivated non-promotion. Mere allegations of unequal treatment by a member of the protected class were insufficient to state a claim, and she did not show any causal relationship between race and the actions of her employer.

Back reference.-- ¶2326.195 .

Attorney Fees--Award to Prevailing Defendant--Unreasonable Claims.

--Attorney fees were awarded to an employer who was sued for racially motivated non-promotion. The claimant failed to support her allegations of discrimination and the action was found to be unreasonable, frivolous and without any foundation.

Back reference.-- ¶2635.113 .

Alice D. Millender, Pro Se, Columbia, South Carolina, for Plaintiff.

Fred A. Walters, Columbia, South Carolina; Vincent L. Sgrosso, Francis B. Semmes, Atlanta, Georgia, for Defendant.

Anderson, D.J.: This Title VII case came to be heard before the Court, sitting without a jury, on May 22 and 23, 1984. The Court hereby makes the following:

Findings of Fact

1. Plaintiff is a black female and is thus a member of a protected class. Plaintiff has been employed by Defendant from July 25, 1977, to the present. At all times relevant to the complaint in this lawsuit, Plaintiff was a resident of South Carolina.

2. Defendant Southern Bell Telephone and Telegraph Company ( “Southern Bell” ) is a corporation doing business in the State of South Carolina and is an “employer” within the meaning of Title VII of the Civil Rights Act of 1964, as amended ( “Title VII” ).

3. Communications Workers of America, AFL-CIO ( “CWA” ), is the sole and exclusive bargaining agent for all non-supervisory employees of Southern Bell.

4. CWA and Southern Bell entered into Collective Bargaining Agreements (jointly referred to as the “Agreement” ) to be effective from August 7, 1977, until 11:59 p.m. on August 9, 1980, and from August 10, 1980, until 11:59 p.m. on August 6, 1983. The Agreement was in effect at all times pertinent to the complaint.

5. All employees employed in the jobs of Network Administration Clerk, Accounting Assistant, and Circuit Layout Assigner are covered by the Agreement. Plaintiff and both persons eventually selected for promotion were covered by the Agreement.

6. The Agreement contains a bona fide seniority system and a job vacancy selection procedure in which an employee’s seniority is given consideration.

7. On or about January 29, 1980, in accordance with the Agreement’s job vacancy selection procedure, Southern Bell posted a vacancy notice for two job openings in the Circuit Layout Assigner job title.

8. On or about February 5, 1980, Plaintiff and a number of other candidates, including the persons eventually selected, sought to be promoted to one of two vacant positions as a Circuit Layout Assigner. On or about April 7, 1980, Defendant promoted two white female employees who held the title of Network Administration Clerk to the vacancies instead of Plaintiff.

9. In accordance with the Agreement, candidates with greater seniority in Southern Bell’s seniority system must receive promotions if they are substantially equally qualified or better qualified for the vacancy than another candidate with less seniority. (Agreement, Section 12.02C.) The Court fully credits the testimony of the Southern Bell “Selector” who testified that each of the white employees who was promoted had greater seniority than Plaintiff and each was equally or better qualified for the positions than the Plaintiff. Moreover, at least two candidates other than Plaintiff who were as well qualified as she and were more senior would have been selected in Plaintiff’s stead.

10. Plaintiff filed a Charge of Discrimination with the South Carolina State Human Affairs Commission ( “SCHAC” ) and the Greenville, South Carolina, office of the Equal Employment Opportunity Commission ( “EEOC” ) on or about March 26, 1980 (the “1980 Charge” ), in which she complained, inter alia, that the Defendant failed to promote her to one of the two vacant positions in the Circuit Layout Assigner job and placed an improper entry into her personnel record because of her race. Plaintiff subsequently filed another Charge of Discrimination with SCHAC and EEOC on or about March 10, 1981, in which she complained that Southern Bell retaliated against her because of her filing the 1980 Charge. The EEOC issued a “no cause” finding with regard to the 1980 Charge on or about April 8, 1981. EEOC also issued right-to-sue letters to Plaintiff on or about April 8, 1981, and December 16, 1981, respectively, with regard to the 1980 and 1981 Charges.

11. Plaintiff testified that she felt that certain actions taken against her by Defendant were occasioned by retaliatory motives. She also makes a generalized claim that she was harassed, but also utterly fails to establish any connection whatsoever between the alleged harassment and her race or the filing of charges of discrimination. For example, Plaintiff testified that Southern Bell intentionally harassed her by sending incorrect telephone bills. Plaintiff failed to establish that such action was intentional or was in any way related to her race. Additionally, Plaintiff alleged that she was wrongfully denied transfers, leaves of absence, pay for attending pretrial conferences in this action, and was singled out for unfavorable treatment by her supervisors. Defendant rebutted these charges by offering substantial evidence that there were no similarly situated white employees who were treated differently, and that such actions were taken because they were consistent with the Agreement or with company policy, or because of Plaintiff’s inability to work harmoniously with coworkers and supervisors, instances of misconduct, or poor attitude toward her employer.

Conclusions of Law

1. The Court has jurisdiction of the subject matter of this lawsuit pursuant to 42 U.S.C. §2000e-5(f) .

2. The Court has jurisdiction over the person of Defendant. Venue properly lies in this Court.

3. Plaintiff has standing.

4. Defendant is an employer engaged in an industry affecting commerce, and has fifteen (15) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar years, within the meaning of 42 U.S.C. §2000e(b) .

5. Communications Workers of America, the sole and exclusive bargaining agent for all non-supervisory employees of the company, entered into collective bargaining agreements with Southern Bell, which agreements contained a bona fide seniority system within the meaning of 42 U.S.C. §2000e-2(h) and which were in effect at all times pertinent to this case.

6. Plaintiff has complied with the procedural requirements of 42 U.S.C. §§2000e-5(e) and (f) with respect to Plaintiff’s non-promotion to the vacancy which she sought and her claims of retaliation.

7. Plaintiff’s initial burden in the case at bar is to establish a prima facie case of race discrimination. McDonnell Douglas Corp. v. Green, [5 EPD ¶8607 ] 411 U.S. 792, 935 Ct. 1817, 36 L.Ed.2d 668 (1973). If Plaintiff succeeds, the Defendant is required, in order to rebut the prima facie case, only to articulate a nondiscriminatory reason for the action it took against the Plaintiff. Texas Dept. of Community Affairs v. Burdine, [25 EPD ¶31,544 ] 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Smith v. Flax, ¶22 EPD ¶30,823 ] 618 F.2d 1062, 1066 (4th Cir. 1980); Williams v. Sonoco Products Co., [30 EPD ¶33,182 ] Civil Action No. 81-1469-0, 33 FEP (BNA) 1200, 1204 (D.S.C. 1982); Grate v. Grand Stand Water and Sewer Authority, Civil Action No. 80-8160-3, 29 EPD. (CCH) ¶32,713 (D.S.C. 1982). The burden of persuasion throughout remains upon the Plaintiff to show that intentional racial discrimination was a determining or motivating factor in the employment decision. 618 F.2d at 1066, 33 FEP Cases at 1204, 29 EPD at 25,329. Put another way, Plaintiff must show that “but for” Defendant’s alleged motive to discriminate against her because of her race, she would have received the promotion from Accounting Assistant to Circuit Layout Assigner. EEOC v. Federal Reserve Bank of Richmond, [30 EPD ¶33,269 ] 698 F.2d 633, 689 (4th Cir.), cert. granted in part,--U.S.--, 104 S.Ct. 334, 78 L.Ed.2d 305 (1983); Smallwood v. United Air Lines, Inc., [33 EPD ¶34,185 ] 728 F.2d 614, 618 (4th Cir. 1984); cf. Spagnuolo v. Whirlpool Corp., [25 EPD ¶31,596 ] 641 F.2d 1109, 1112 (4th Cir.), cert. denied, [27 EPD ¶32,145] 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158 (1981), aff’d in part and rev’d in part, [32 EPD ¶33,801 ] 717 F.2d 114 (4th Cir. 1983) (Age Discrimination in Employment Act ( “ADEA” ) case)). Moreover, unsubstantiated assertions of discrimination do not supply the necessary causal nexus between race and adverse employment actions. Lewis v. Tobacco Workers Int’l Union, [16 EPD ¶8310 ] 577 F.2d 1135, 1143 (4th Cir. 1978), cert. denied [18 EPD ¶8716A], 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 56 (1979); Stock v. Horsman Dolls, Inc., Civil Action No. 79-1202, 27 EPD ¶32,275 (D.S.C. 1981) (ADEA case).

[Failure of Proof]

8. Plaintiff has not established by the preponderance of the evidence a prima facie case of discrimination because of race with regard to her claim that Defendant unlawfully refused to promote her from the position of Accounting Assistant to a position as a Circuit Layout Assigner and placed an improper entry into her personnel record. As noted above, more is required than a mere allegation of unequal treatment and status as a member of a protected class. Lewis v. Tobacco Workers Int’l Union, supra. In any event, Southern Bell successfully rebutted Plaintiff’s claims by articulating legitimate, non-pretextual non-discriminatory reasons for Plaintiff’s non-promotion and the placement of a disciplinary entry into her record. Plaintiff did not prove by a preponderance of the evidence that a racially discriminatory motive was the reason for her non-promotion or discipline because Defendant’s evidence goes well beyond the required standard of “articulating” legitimate, non-discriminatory reasons for its actions. Texas Dept. of Community Affairs v. Burdine, supra.

Plaintiff has additionally failed to show that she was superior in qualifications to the selectees and thereby failed to establish that the Defendant’s reasons were pretextual. EEOC v. Federal Reserve Bank of Richmond, supra. Moreover, assuming arguendo that Plaintiff was unlawfully discriminated against, the evidence establishes that Plaintiff would not have been promoted in any event. See Smallwood v. United Air Lines, 728 F.2d 614, 618; Sledge v. J.P. Stevens & Co., [18 EPD ¶8657 ] 585 F.2d 625, 638 (4th Cir.), cert. denied [19 EPD ¶9059] 440 U.S. 981, 99 S.Ct. 1789, 60 L.Ed.2d 137 (1979). Moreover, Plaintiff has failed to show the existence of any similarly situated white employees who were treated differently than she with regard to any of her allegations. Harberson v. Monsanto Textiles Co., [13 EPD ¶11,586 ] 17 FEP (BNA) 99, 101-102 (D.S.C. 1976).

9. Plaintiff has failed to establish “harassment” or retaliation in violation of Title VII with respect to alleged discrimination alleged to have been taken against her subsequent to her filing of a charge of discrimination with the Equal Employment Opportunity Commission.

[Attorney Fee Award]

10. Christianburg Garment Co. v. EEOC, [15 EPD ¶8041 ] 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 649 (1978), authorizes the Court to award a prevailing defendant in a Title VII case its attorneys” fees when the action is frivolous, unreasonable, or without foundation. To make such an award, it is not necessary for the Court to find that the action was brought in subjective bad faith. Id.

The Court can come to no other conclusion except that this action is frivolous, unreasonable, and without foundation, thereby justifying an appropriate award to Southern Bell of its attorneys” fees. In this regard, the Court notes that there was no evidence that Plaintiff was harassed as she claimed, or that any other employee received disparately favorable treatment. The only specific instances relied upon by the Plaintiff as evidence of discrimination were rebutted by Plaintiff’s own testimony on cross-examination. Additionally, Plaintiff called no witnesses on direct examination to support her claims. Her case rested in large part on her own personal interpretation of the Collective Bargaining Agreement, a subject which is collateral, at best, to her allegations of discrimination. Moreover, Plaintiff admitted that she did not know, either at the time she brought her suit or at the time of trial, the qualifications of the persons she alleged were wrongfully promoted in her stead. Clearly, Plaintiff could not, from the beginning, hope to prevail in this action.

The Defendant is hereby notified that it may file and serve a petition for an award of attorneys” fees within fifteen (15) days from the date of this Order. Plaintiff is hereby notified that she shall have fifteen (15) days to respond to Defendant’s petition for attorneys” fees after receiving service thereof.

It is so Ordered.